(dissenting):
I dissent.
With all respect, I am compelled to disagree with the ultimate conclusion of my brothers that reversal is not required in this ease. While I am not fully in accord with the views expressed by the principal opinion concerning any issue, I believe it necessary to record my position only on the propriety of the law officer’s instructions concerning the accused’s mental state and its effect upon his ability both to understand the provisions of Uniform Code of Military Justice, Article 31, 10 USC § 831, and to make an informed choice either to answer questions put to him or to remain silent.
The accused committed the act with which he was charged in the dawn hours of June 3, 1959. After proper warning under Code, supra, Article 31, he was interrogated by military investigators from 10:30 a.m. until 11:55 a.m. The questioning was resumed at 12:55 p.m., and accused dictated a statement in which he confessed the slaying.
Agents testified that accused cried and sobbed during the first period of interrogation and, although more composed in the afternoon, still appeared distraught.
Immediately after his statement was completed, accused was hospitalized for psychiatric observation. On July 6, 1959, psychiatrists concluded that accused was psychotic at the time of his acts. Later, other psychiatrists examined and observed the accused at Sheppard Air Force Base. On November 12, 1959, this group concluded that accused was mentally responsible at the time of the homicide but that his act triggered a psychotic episode. At least one expert witness was of the belief that accused was at all times mentally responsible.
Accused’s condition at the time of his interrogation was most extensively described in the testimony of Dr. Anderson, the psychiatrist in whose custody he was first placed after making a statement. Dr. Anderson expressed the view that accused was psychotic during the period of his interrogation and, conceding his ability perhaps “intellectually” to comprehend the terms of the warning afforded him, opined that accused was unable meaningfully to exercise his rights under the Article. There is other evidence to the contrary, but there is no doubt that the evidence raises an issue concerning accused’s ability to understand and apply his right to remain silent. On this point, my brothers and I agree.
Thus, the issue with regard to the accused’s confession narrows to the sufficiency of the law officer’s instructions. With respect to this matter, he advised the court-martial as follows:
“Evidence has been presented in this case which places in issue the question of the mental competency of the accused at the time he was informed of his rights under Article 31, as well as at the time of his making of the statement. You are instructed that if you find the accused had a mental disease, defect or derangement, including a character or behavior disorder, to such a degree that he was unable to understand the warning given or which deprived him *538of mental freedom to confess or deny participation in the offense, or which precluded him from exercising his volition to refuse to make a statement, or which compelled him to make a statement, then you must find a failure to comply with Article 31 in the first instance, or find that the statement was involuntarily given in the other instances. In any of these events, you must give no weight to the statement given by the accused. Also, if you find that the accused was not mentally competent at the time he made the statement, then you must give no weight to the statement.” [Emphasis supplied.]
It is clear that the foregoing advice shifted the burden of proving that he suffered from a mental disease at the time of his interrogation to the accused, for it required the court-martial affirmatively to find the existence of a mental disease, which rendered him either unable to understand the warning, or deprived him of the ability voluntarily to refrain from making a statement. The proper rule, of course, is that the court members must have found the opposite condition before they were entitled to consider the statement, i.e., that accused was not suffering from a mental disease which made the warning meaningless to him or deprived him of volition. Manual for Courts-Martial, United States, 1951, paragraph 140a.
In United States v Monge, 1 USCMA 95, 2 CMR 1, this Court early pointed out that the United States has the burden of establishing the voluntariness of a confession it seeks to have considered. In that case, the Chief Judge pointed out, for a unanimous Court, at page 98:
“To effectuate these policies [regarding the strong possibility that confessions might have been unlawfully obtained], there exists the rule that the burden is on the prosecution to prove the voluntary nature of any confession offered in evidence.”
This injunction was repeated without dissent in United States v Webb, 1 USCMA 219, 2 CMR 125, at page 221:
“It is elementary law that a confession or admission may not be received in evidence if it was not voluntarily made. It is also a recognized principle of military practice that a confession is not admissible in evidence before a court-martial unless it is affirmatively shown that it is voluntary.”
It is equally clear that the Government has the burden of proving that accused possessed the capacity to understand a warning under the provisions of Code, supra, Article 31, and to exercise his rights thereunder. United States v Hernandez, 4 USCMA 465, 16 CMR 39; United States v Dison, 8 USCMA 616, 25 CMR 120. Turning to the precise wording of the instruction here in question, the cases are legion that such advice has the effect of shifting to the accused the responsibility for proving incapacity.
In United States v Burns, 2 USCMA 400, 9 CMR 30, the accused’s mental responsibility was placed in issue. The law officer instructed the court members that he must be acquitted, “ ‘If in their own minds or a sufficient number of minds, they find the accused is insane.’ ” (Emphasis supplied.) Concluding that the instructions were altogether confusing and misleading, this Court remarked, at page 402:
“. . . The test announced by the law officer could readily be misinterpreted to the detriment of the accused. The court-martial was told that if a certain number found the accused insane he could not be found guilty. But no mention is made of the burden and degree of proof. The court-martial could have concluded the accused must establish his insanity to their satisfaction. Moreover, they could have assumed that he must establish it by a greater degree of proof than is necessary. The only duty we know which is imposed on the accused is that he produce sufficient evidence of insanity to place it in issue. If he does this, then the Government must prove sanity . , . [beyond a reasonable doubt.]” [Emphasis supplied.]
In United States v Morphis, 7 USCMA 748, 23 CMR, 212, the law officer advised the court-martial that they must find beyond a reasonable doubt *539that accused was intoxicated before the effect of his drunkenness upon the element of premeditation in a murder charge could be considered. Over Judge Latimer’s dissent, we said, at page 755:
“. . . The law officer’s instruction was clearly erroneous because it required the accused to assume the burden of proof beyond a reasonable doubt in order to prevail.”
To the same effect, see United States v Noe, 7 USCMA 408, 22 CMR 198 (“ ‘if you believe from the evidence beyond a reasonable doubt that the accused was laboring under an honest mistake’ ”), and United States v Soccio, 8 USCMA 477, 24 CMR 287 (intent to desert might be inferred from length of absence without leave “ ‘in the absence of satisfactory explanation’ ”).
The foregoing authorities make unavoidable the conclusion that the military judge in this case shifted the burden of proof from the United States to the accused when he required lack of understanding and volitional capacity to be found before the confession need be disregarded. Prejudice is clearly demonstrated, for the court members were permitted to use in evidence a confession of the accused for all purposes, including its bearing on the principal issue of sanity, without first being required to determine that it was voluntary. In short, they were deprived of correct judicial guidance where it was essential that they receive it. United States v Noe, supra, at page 411.
The principal opinion agrees that the instruction is erroneous but adopts the Government’s argument that the law officer’s advice, as a whole, properly informed the court members that the burden was on the prosecution to establish that accused possessed mental capacity to understand his rights and make an informed choice whether to speak or to remain silent. This is premised on the foundation that the law officer elsewhere repeatedly so informed the court. With this reasoning, I cannot agree.
In the first place, our decision in United States v Sanchez, 11 USCMA 216, 29 CMR 32, and United States v Smith, 11 USCMA 321, 29 CMR 137, do not support the proposition that instructions on the burden of proof of sanity or guilt suffice to overcome an erroneous shifting of the responsibility of establishing involuntariness to the accused. In Sanchez, supra, the question involved was whether voluntariness of a confession must be established beyond a reasonable doubt. A majority of the Court held that the law officer’s advice with respect to that topic was, as a whole, not erroneous and emphasized that it expressly placed the burden of proof of voluntariness upon the Government and required rejection of the confession unless it was determined to have been properly obtained. In Smith, supra, the instruction in question dealt only with the requirement that accused know whether a false pretense was, in fact, false, and in no respect indicated which party had the burden of proving such falsity. Indeed, a portion of the discussion of the instruction in that opinion is most illuminating when applied to the advice now before us. Thus, it was there stated, at page 326:
“Support for the contention that the challenged instruction shifts the burden of proof is sought in Boatright v United States, 105 F 2d 737 (CA 8th Cir) (1939). There the trial judge told the jury that: ‘if you should find and believe from the evidence . . . that these defendants did not devise an artifice or scheme to defraud; . . . then it would be your duty to find either one or both of them not guilty.’ That instruction called for an affirmative finding that the defendants did not make the representations charged as a condition for acquittal. In the instant instruction, there is no indication whatever the court had to find affirmatively the accused entertained an honest belief that the fact he represented was true, as a condition for acquittal.”
Secondly, the law officer’s conclusion of his instructions on voluntariness, given when the statement was first admitted, with a reference to his later advice on mental responsibility in general, obviously has no bearing on the propriety of his requirement that the *540court find involuntariness before rejecting accused’s confession. I have no doubt it was intended to serve as no more than a connecting device to insure that the court members were aware of the proper definition of mental capacity and responsibility, but, in reality, it serves to accentuate the shifting of the burden rather than to cure it. In the instructions on voluntariness, the court was told it must find accused mentally incapable before rejecting the confession. In those regarding sanity, it was told that it must affirmatively find him responsible or acquit. The second instruction thus emphasized the different rules to be applied in the two areas and, if anything, compounded the error. Moreover, this injunction was not repeated in the final instructions. At best, all that can be said is that the court was at one place told the burden was on the Government to establish sanity and, at another, that it must find involuntariness to reject accused’s confession. These inconsistent standards leave no room for application of the “four corners” doctrine. 'United States v Noe, supra; United States v Morphis, supra. Thus, I am unable to join with the Chief Judge in reasoning that the instructions as a whole set forth a proper advice.
In sum, then, I am of the view that the law officer’s instruction prejudi-cially and erroneously shifted the burden of proof to the accused in connection with establishing the conditions under which his confession was obtained. The error was not cured by the other instructions in the case, and I would not, in view of the seriousness of the charge, sentence, and omission, invoke the doctrine of waiver.
I would reverse the decision of the board of review and authorize a rehearing.